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SUPERVISION, EVALUATION, SUPERVISION, EVALUATION, & TERMINATION/DISCHARGE& TERMINATION/DISCHARGEOF SCHOOL EMPLOYEESOF SCHOOL EMPLOYEES

By Ramon Vigil, Esq.Cuddy & McCarthy, LLP

NMASBO 2012

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PERSONNEL ACTION MUST BE• Lawful • Ethical • Practical

Ethical Practical

Lawful

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Hiring Process

Application Interview (What can you ask?) References / Background Checks Vacancy Notice & Local Hiring Procedures Use of Committees Notification to Applicants

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Supervision/Evaluations

Purpose: Improvement Support Personnel Decisions

Procedures governed by Statutes, PED Regulations, Local Board Policy, Union Contract

Know Job Descriptions of Employees

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Cycle of Supervision

Specify Purpose & Criteria Train Supervisors/Evaluators Pre-Conference Conduct Multiple Observations

Formal & Informal Job Observations Conduct Conferences Identify Areas for Development &

Improvement

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Cycle of Supervision (Cont.)

Design a Growth Plan or Improvement Plan

Provide Assistance, Guidance & Support Determine if performance has improved

(Sufficient Growth? Development?) Make employment decision

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Employee Evaluation Minimums

Multiple Observations – formal & informal at the job site

Confer Before/After Each Observation Identify Strengths & Areas for Growth Collaboratively Develop Plan for

Improvement Provide Assistance (individual guidance,

workshops, classes, etc.)

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Cycle of Supervision

IF THE SUPERVISOR CONSIDERS WORK PERFORMANCE UNSATISFACTORY, NOTICE SHOULD BE GIVEN TO THE EMPLOYEE OF THE POSSIBILITY FOR TERMINATION!!!!!!!!!!!!!!!!!!!!!!!!!

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Unsatisfactory Work Performance v. Misconduct

Use Cycle of Supervision to identify and address unsatisfactory work performance Document with employee evaluations

and employee growth plans Use Investigation Procedures / Interviews

w/ employees for Misconduct Document with memo/letter of

reprimand

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Know the Difference

Tenured v. Non-tenured employees Myth #1: Tenured employee can never

be terminated. Myth #2: Non-tenured employee can

be terminated for no reason. Term Contract v. At-Will Contract

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Termination / Definitions

Termination – In the case of a non-certified employee, the act of severing the employment relationship with the employee. In case of certified = non-renewal of contract.

Just Cause – reason that is rationally related to an employee’s competence or turpitude or the proper performance of his duties and that is not a violation of the employee’s civil or constitutional rights

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Discharge / Definition

Discharge – severing the employment relationship with a certified/licensed employee prior to the expiration of the current employment contract.

Licensed School Employees – teachers, school administrators and instructional support providers.

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Instructional Support Providers

Person employed to support the instructional program, including educational assistant, librarian, school counselor, social worker, school nurse, speech-language pathologist, physical therapist, occupational therapist, recreational therapist, interpreter for the deaf and diagnostician.

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NM Statutes

Termination; Sections 22-10A-24 and 25 Termination Hearing before the

Board of Education Termination Appeal Hearing before

an Independent Arbitrator Notice of Reemployment; Termination

Section 22-10A-22 – Certified Instructors only

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NM Statutes

Section 22-10A-26 Excepted from Termination

Provisions Certified School Administrators Non-Certified employee hired to

perform primarily district wide management function

Teacher hired to fill position of teacher entering military service

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NM Statutes

Discharge – sections 22-10A-27 and 22-10A-28 Discharge Hearing before the Board of

Education Hearing is recorded Appeal to an Independent Arbitrator Decision of Arbitrator may be appealed

through the judicial process

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Protected Activities / Statutory Defenses to Termination

First Amendment – Freedom of Speech, Association

Union Activity Religious Activity Political Activity Retaliation for EEOC claim, Workers’

Comp., Whistle Blower Title VII – Race, Color, National Origin,

Gender, & Religion

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Protected Activities / Statutory Defenses to Dismissal (cont.)

Americans w/ Disabilities Act (ADA) Age Discrimination in Employment Act

(ADEA) NM Human Rights Act, NMSA Section 28-

1-7A: All of Title VII plus Ancestry, Sexual Orientation, Gender Identity, Spousal Affiliation, Mental Handicap & Serious Medical Condition

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